Hamberger & Weiss LLP

Clarification on Genduso Decision

Last month we reported on the Genduso decision from the Appellate Division, Third Department. We received some comments and questions about our article, specifically on whether we felt the case was wrongly decided. Our answer is, simply put, no. The case is a benefit to employers and carriers and we feel it was correctly decided. The Board and Appellate Decision in Genduso allowed the carrier to credit prior schedules for loss of use of a leg (SLU) against a new leg SLU. Although we noted in our headline that the Board was allowing a carrier to credit a prior ankle injury against a new leg SLU, that prior ankle SLU was never awarded as a foot SLU, instead the claimant received a leg SLU which contemplated his injuries to the ankle. The Court’s decisions allowing a carrier to credit a prior leg SLU against a new leg SLU is not unusual in current practice.

However, we believe that the Court’s statement that “[n]either the statute nor the Board’s guidelines list the ankle or knee as body parts lending themselves to separate SLU awards” is incorrect because the Board’s Impairment Guidelines for determining SLU provide separate schedule loss of use calculations for injuries involving knees and feet. Ankle injuries are generally analyzed as foot schedule loss of use awards rather than leg awards. As such, the Court’s statement suggests a misreading of the Board’s Impairment Guidelines.

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